New Delhi: Granting interim relief, the Delhi High Court has stayed the ban on the manufacture, import, sale, advertisement, online sale and distribution of Electronic Nicotine Delivery Systems(ENDS) including e-cigarettes, e-sheesha, vape, e-hookah.

The court has stayed the decision of imposing a ban on the same by the Director General Health Services(DGHS) till May 17.

ENDS products are marketed as an alternative to cigarettes, as they don’t have some of the harmful ingredients that go into pre-rolled cigarettes. However, the electronic devices release nicotine, which is itself contained in cigarettes, is addictive and is toxic if consumed beyond certain safe limits.

Earlier this year, the Central Drugs Standards Control Organisation (CDSCO) had issued a letter directing all drug controllers in states and Union territories to not allow the manufacture, sale, import and advertisement of Electronic Nicotine Delivery Systems, including e-cigarettes and flavoured hookah, in their jurisdictions.

The ban was challenged by a number of litigants who have approached the courts asking for e-cigarettes to be allowed in India, including a “housewife,” a “former cigarette smoker,” and two e-cigarette vendors.

The single bench of Justice Vibhu Bakhru examined the petitions filed by manufacturers and importers of ENDS.

The petitions challenged the ban wherein it was contended that ENDS will not come within the definition of "drugs" as per Section 3(b) of the Drugs and Cosmetics Act. They also advanced that ENDS offer a healthier substitute to tobacco-based smoking habit, as such devices do not produce, which is a product of burning of cigarette paper.

The petitioner’s argument was countered wherein the Centre submitted that ENDS were advertised as replacement therapy for tobacco addiction, and have therapeutic value so as to bring them under the definition of 'drugs'. It further submitted that health benefits of ENDS were yet to be medically established.

However, the centre’s defence was disagreed with, and the judge observed,

"It does not appear that the devices in question are sold as therapeutic devices, or as medicines for internal or external use of human beings or animals or intended to be used for in the diagnosis of any disease. The said products do not have any medicinal value"

Bakhru held that ENDS does not appear to be a “drug” as defined in Section 3 of the Drugs and Cosmetics Act, and thus the CDSCO may not actually be able to regulate on it. The court found that if e-cigarettes/ENDS are not medicines, then the Director General Health Services would not have the jurisdiction to the issue the circular to states. The judge further stated that the devices are not being sold as therapeutic devices with medicinal value, for the treatment of any disease.

According to legal daily Live Law, the stay has been granted on both documents till the date of next hearing, May 17.

Meghna A Singhania is the founder and Editor-in-Chief at Medical Dialogues. An Economics graduate from Delhi University and a post graduate from London School of Economics and Political Science, her key research interest lies in health economics, and policy making in health and medical sector in the country. She can be contacted at editorial@medicaldialogues.in. Contact no. 011-43720751

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